Girl, 11, Could Be Deported To Poland; Father is U.S. Citizen

[Mr. Ected]

The family of an 11-year-old Forsyth County girl is trying to keep her from having to return to Poland next month because the family missed a deadline to apply for the right for her to remain in the U.S.

The girl, Ewelina Bledniak, hasn’t been in Poland since she was 2 years old. Immigration officials say she must return there and wait a year before she can come home.

Hubert Bledniak, Ewelina’s father, is a U.S. citizen. He says an attorney missed a deadline in 2001 that would have allowed Ewelina to apply for a green card.

The Bledniaks say they’re not optimistic about winning a legal battle before the girl’s July 23 deadline, so they’ve bought plane tickets to accompany her to Poland.

Ewelina will stay with her grandmother in Poland until she gets her green card.

http://www.ajc.com/news/content/metro/northfulton/stories/2009/06/09/girl_deport_poland.html?cxntlid=homepage_tab_newstab

This happened to my German mother 5 years ago. As my father, a US citizen and war veteran, lay in a hospital after kidney failure, my mother was refused entry back into the USA because her green card had lapsed. She had gone to Europe to assist her ailing father, and eventually to administer his estate after he passed away. Two years and several thousand dollars later, she was allowed to return to America.

[Smith_3]

1. Talk about buerocrats being a problem.

[WilmywoodNCparalegal]

2. Well, it sucks but it's the law

if the lawyer missed the 2001 deadline, the girl was here illegally. In 2001, there was a semi-amnesty that, provided one could pay $1,000 fine and prove he/she was in the U.S. during specific dates, allowed people residing in the U.S. illegally (either family sponsored or employer sponsored) to apply for permanent residence (i.e., green cards).

Otherwise, if this girl's stay in the U.S. had been valid she would be perfectly ok to stay, especially since her father is a U.S. citizen. Since it seems that she is asked to go back, subject to the 3 year/10 year bar, it sounds like she was not here in the U.S. in valid status. It makes no sense why no I-130 was filed on her behalf prior to 2001, at least to place her on the priority date list. If indeed the attorney did not timely file the petition, s/he should be reprimanded by the State Bar, assuming that is true.

As for your German mother, U.S. permanent residence is deemed permanently abandoned if you reside abroad for more than 6 months at a time and do not enter the U.S. at least once during that time, unless you have a re-entry permit, which allows you to hold on to permanent residence even if you must live abroad.

That's why any permanent resident who is planning on going abroad for a long period of time, especially in case of a family emergency, should always first request a re-entry permit to avoid the issue of abandonment. Moreover, because she was married to a U.S. citizen, she was deemed an 'intending immigrant' and was probably even denied an entry on visa waiver (as citizens of Germany who visit the U.S. for 90 days can do).

[Mr. Ected]

3. Tell that to the group of non-Americans gathering in the Walmart parking lot right now

Dual standards. Uneven application of our laws. Antiquated re-entry requirements. It's indefensible.

[WilmywoodNCparalegal]

9. I agree it's a dual standard...

that's why immigration reform must first deal with LEGAL immigration and these problems, rather than with ILLEGAL immigration, where the law doesn't apply.

[hobbit709]

4. To quote Mr. Bumble

"The law is an ass"

[leveymg]

5. Don't do much family-based immigration? She's an immediate relative minor child, and can stay

222(g) unlawful presence doesn't apply to her as a minor.

If the child was born out of wedlock, there has to be a bonafide parent-child relationship (providing support or living together.)

As the minor child of a USC, there's absolutely no legal reason she has to depart the US - the OP should get another opinion from an AILA lawyer.

Children

General


The meaning of "child" is not as simple as it first appears. For the purposes of family-based immigration, a "child" is defined in INA §101(b)(1) as follows:

a child born in wedlock;

a stepchild whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of stepchild occurred;

a child legitimated under the law of the child's residence or domicile, or under the law of father's residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of the legitimating parent or parents at the time of such legitimation;

a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person;

a child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years: provided that no natural parent of any such adopted child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act; or

a child, under the age of sixteen at the time an immediate relative petition is filed on his or her behalf, who is an orphan because of the death or disappearance of, abandonment or desertion by, or separation or loss from, both parents, or for whom the sole or surviving parent is incapable of providing the proper care and has in writing irrevocably released the child for emigration and adoption; who has been adopted abroad by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who personally saw and observed the child prior to or during the adoption proceedings; or who is coming to the United States for adoption by a United States citizen and spouse jointly, or by an unmarried United States citizen at least twenty-five years of age, who have or has complied with the proadoption requirements, if any, of the child's proposed residence: provided that the Attorney General is satisfied that proper care will be furnished the child if admitted to the United States: Provided further, that no natural parent or prior adoptive parent of any such child shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this Act.

The parent-child relationship must continue to exist at the time that immigration benefits are sought. A child includes only an unmarried person under the age of 21. Accordingly, the child must be both unmarried and under 21 at the time the visa is issued or Adjustment of status and at the time that he or she applies for entry to the United States. If the child marries or becomes 21 after the visa is issued and before he or she applies for entry, he or she becomes disqualified for immediate relative status. However, certain exceptions to this "age-out" problem exist as a result of the Child Status Protection Act, which is discussed elsewhere in this web site.

[Mr. Ected]

6. The family from the posted article lives in my town

Perhaps I can try to contact them with this information.

Thank you.

[WilmywoodNCparalegal]

8. That is the definition of a child, for sure

But something else must be going on that we don't know about. And, by the way, yes, I do family immigration. If she is being deported on July 23, something is going on that we are not aware of, n'est ce pas?

[hobbit709]

10. The article doesn't say if her father was a US citizen

before she was born. If he was, she's already a citizen, no matter where she was born.

[leveymg]

12. That is correct. If the father was naturalized after her birth, she's an immed. relative. Rules:

If he was a USC at time of her birth, she's a USC, with some conditions. Here are the rules on this from the State Dept website:

Birth Abroad to One Citizen and One Alien Parent in Wedlock: A child born abroad to one U.S. citizen parent and one alien parent acquires U.S. citizenship at birth under Section 301(g) INA provided the citizen parent was physically present in the U.S. for the time period required by the law applicable at the time of the child's birth. (For birth on or after November 14, 1986, a period of five years physical presence, two after the age of fourteen is required. For birth between December 24, 1952 and November 13, 1986, a period of ten years, five after the age of fourteen are required for physical presence in the U.S. to transmit U.S. citizenship to the child.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Father: A child born abroad out-of-wedlock to a U.S. citizen father may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(a) INA provided:

1) a blood relationship between the applicant and the father is established by clear and convincing evidence;

2) the father had the nationality of the United States at the time of the applicant's birth;

3) the father (unless deceased) has agreed in writing to provide financial support for the person until the applicant reaches the age of 18 years, and

4) while the person is under the age of 18 years --

A) applicant is legitimated under the law of their residence or domicile,

B) father acknowledges paternity of the person in writing under oath, or

C) the paternity of the applicant is established by adjudication court.

Birth Abroad Out-of-Wedlock to a U.S. Citizen Mother: A child born abroad out-of-wedlock to a U.S. citizen mother may acquire U.S. citizenship under Section 301(g) INA, as made applicable by Section 309(c) INA if the mother was a U.S. citizen at the time of the child's birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.

[leveymg]

11. The only thing I can think of with an 11 year old would be an issue with relationship w/the USC

father. If he's providing support, and paternity has been established, she should not be in removal proceedings.

[proud2BlibKansan]

7. This has gone beyond ridiculous

How is breaking up families helpful?

[Mudoria]

13. Blame the lawyer, not the law

If he had done what he was paid to do this wouldn't be happening.

[proud2BlibKansan]

15. But the law still says to deport her, right ?

[LostinVA]

14. "Wet foot, dry foot"

[cagesoulman]

16. So if you're an illegal European, you get booted out

...